Miriani v Commissioner for Fair Trading, Office of Fair Trading (GD) [2005] NSWADTAP 73

Appeal Panel - Internal

CITATION: Miriani v Commissioner for Fair Trading, Office of Fair Trading (GD) [2005] NSWADTAP 73 APPELLANT PARTIES: Joe Miriani RESPONDENT Commissioner for Fair Trading, Office of Fair Trading FILE NUMBER: 059037 HEARING DATES: 11/08/2005 SUBMISSIONS CLOSED: 08/11/2005 DATE OF DECISION: 08/11/2005

Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99 DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Deputy President); Montgomery S - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: opportunity to be heard - procedural fairness MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 043293 DATE OF DECISION UNDER APPEAL: 05/04/2005 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 CASES CITED: APPELLANT REPRESENTATION: In person RESPONDENT I Mescher, barrister ORDERS: 1. Tribunal's decision in relation to access to documents affirmed; 2. Tribunal's decision in relation to costs set aside; 3. The question of costs is remitted to the Tribunal to be heard and decided again by the Tribunal; 4. No order as to costs.

REASONS FOR DECISION – Ex tempore 1 HENNESSY: The Appeal Panel has made a decision in relation to this matter and we are going to give some oral reasons for that decision. 2 The decision is that the Tribunal's decision to dismiss the application is affirmed and the Tribunal's decision to award costs against Mr Miriani in the sum of $1000 is set aside. That matter is remitted to the Tribunal as originally constituted for determination and we will make some directions in relation to the further filing of material in relation to the costs application in due course. 3 This is an appeal from a decision of the Tribunal dismissing Mr Miriani's application under the Freedom of Information Act 1989 (FOI Act) as vexatious, misconceived and lacking in substance and ordering him to pay $1000 towards the respondent's costs of responding to his application. 4 The background to Mr Miriani's application under the FOI Act is set out in the Tribunal's decision. It is a matter of some complexity and in order to understand this decision we need to outline it briefly. The Tribunal said in its decision at paragraphs 4 and 5: "The applicant was the owner subject to finance of a motor vehicle, a BMW, for about two years until around April 2003. The motor vehicle was repossessed by the finance company and sold. The applicant is aggrieved over certain procedures and events that led to the car's repossession as well as those surrounding its sale. He has made access applications to the Police Service as well as to the Office of Fair Trading." 5 The Tribunal then sets out the terms of the applicant's application under the FOI Act as follows: "Please provide copy of all documents held by the register of encumbered vehicles (REVS) and other relevant divisions in the Office of Fair Trading regarding my personal affairs which include information relating to the following motor vehicle. Make BMW, model 323CI, registration AJH 34W and 14441, vin/chassis number WBABM32030EX34112, engine number 28189453256S4." 6 We understand that the reason Mr Miriani framed his application as a request for documents regarding his personal affairs was that s 39 of the FOI Act allows a person to whom access to agency documents has been given, to apply for the amendment of the agency's records in certain circumstances. Mr Miriani wanted the records amended but he could not make that application until he had been granted access to documents that related to his personal affairs. 7 The register of encumbered vehicles (REVS) is a database on which finance companies register their interest in a vehicle. The Tribunal noted that this information could be accessed by anyone thinking of buying a car to check whether or not it is encumbered. The Tribunal also said that: "The information is organised and searched by reference to unique vehicle identifiers such as registration numbers. There is no record of the owner or the owner's personal particulars. Ownership data is held in the separate Roads and Traffic Authority system." 8 Mr Miriani agreed that there are no names of individuals or home addresses held on the REVS database. 9 After receiving Mr Miriani's application the Office of Fair Trading informed him that the REVS database does not hold personal information and no information from the database itself was provided. However, the Office of Fair Trading granted Mr Miriani access to documents on their administrative files, including emails and other correspondence from and to Mr Miriani. 10 The Tribunal set out what happened next at paragraph 8 and 9 of its reasons. We will not repeat those paragraphs here but they basically set out Mr Miriani's arguments in relation to the Internal Affairs application and the Office of Fair Trading's decisions following that application. 11 Part of Mr Miriani's submission to the Tribunal was that the existence of any incumbrances in prescribed goods is part of the composite collection of activities, personal to the individual concerned, as any legal claim concerns or affects a person as an individual whether or not it is known to other persons. The Tribunal reached conclusions in relation to that submission at paragraphs 25 and 26 of its reasons and again we will not set out those paragraphs in our reasons today. 12 The Tribunal then dismissed Mr Miriani's application pursuant to s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Its reasons for doing so appear at paragraphs 28 and 29 of the decision. The Tribunal then awarded costs against Mr Miriani in the sum of $1000. Its reasons for doing so are set out at paragraphs 34 to 37 of the Tribunal's reasons. 13 Mr Miriani's grounds of appeal before this Tribunal were threefold. He said that there were two procedural fairness grounds. One related to the hearing itself and one related to the costs order made by the Tribunal. The third ground related to the Tribunal's rejection of his submission that if an agency held information in separate databases, which when linked related to his personal affairs, such an application fell within the FOI Act. 14 Dealing firstly with the applicant's argument about procedural fairness in relation to the hearing, Mr Miriani said that the Tribunal had breached the rules of procedural fairness and in particular the statutory requirements in the ADT Act in both s 70 and s 73(4). Those provisions are a statement of the common law requirement that a party be given a reasonable opportunity to present their case and make submissions. Section 73(4) goes further when it says that the Tribunal is to take such measures as are reasonably practicable to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. 15 The chronology of events in this case was that Mr Miriani lodged his application before the Tribunal on 3 September 2004 and on 22 September 2004 he made a request that the date for the planning meeting be changed. That application was to do with his submission that another application under the FOI Act should be heard separately from the existing application. That request was declined and the matter was eventually listed for a planning meeting on 2 November 2004. 16 It is common ground that the issues in dispute were discussed at that planning meeting and that directions were made for the respondent to file and serve its material by 16 November and for the applicant to file its material in reply within a further fourteen days, that is by 30 November. The matter was then listed for hearing on 7 December. 17 The hearing took place on that day but Mr Miriani said that he made a verbal request in the planning meeting on 2 November for the matter be listed later as he was expecting additional advice and information from third parties. He has clarified today that that additional information and advice was correspondence from the Premier, the Premier's Department and the RTA in relation to his FOI application. 18 He did receive responses from those bodies, however two of the three letters were not received, he says, until after the hearing date. One, in particular, was a letter of 17 December 2004 from the RTA addressed to Mr Miriani from Mr Paul Forward, the chief executive of the RTA. That letter says in part: "The question of whether registration data is personal or non-personal information requires an examination of each case. Personal information is not defined under the FOI Act but under the Privacy and Personal Information Protection Act 1998. The meaning of both terms as they relate to motor vehicle registration data will have to be determined on a case by case basis." 19 There is also a letter from the Director General of the Premier's Department dated 15 November 2004, which Mr Miriani said he did not receive until after the hearing date which states in part: "In terms of general FOI policy there are provisions in the FOI Act that permit a person aggrieved with an FOI decision to seek redress, initially in the form of internal review. If still dissatisfied with the outcome of this internal review you may seek an external review either by complaining to the Ombudsman or by lodging an appeal with the Administrative Decisions Tribunal." 20 Mr Miriani filed these documents with the Tribunal on 30 December and 5 January respectively. However, in our view these letters did not contain any information which would have been useful to the Tribunal in determining Mr Miriani's application. All they did was state the position under the FOI Act which was already known to Mr Miriani and the Tribunal. They did not give Mr Miriani any legal advice or point to any matters that were not before the Tribunal at the hearing date. For that reason, any failure by the Tribunal to postpone the hearing in anticipation of receiving relevant information is misconceived. 21 We are satisfied that Mr Miriani was given every reasonable opportunity, both in terms of common law procedural fairness and in terms of the provisions of the ADT Act which we have referred to. The matter was not expedited or treated with any urgency. It was some three months between the time Mr Miriani lodged his application and the date of hearing and there is nothing to suggest that Mr Miriani had anything but an ample opportunity to provide submissions and evidence in support of his case. Indeed, he did lodge a detailed affidavit and made detailed written and oral submissions to the Tribunal. Mr Miriani was not able to point to any other prejudice or disadvantage that he suffered as a result of the scheduling of the directions hearing or the substantive hearing. 22 Consequently, we find no error of law in relation to any procedural fairness argument relating to the hearing and we also decline to extend the appeal to the merits of the Tribunal's decision partly because there is no error of law made out. 23 In relation to the second limb of the procedural fairness argument, it is common ground that at the planning meeting on 2 November, President O'Connor put Mr Miriani on notice that he might face a costs application if he pursued his application for review. That is obvious from paragraph 35 of the Tribunal's reasons. 24 The Tribunal noted that after the planning meeting, Mr Miriani wrote saying that the unexpected comments of the Tribunal had: "caused me a certain degree of confusion and surprise as the issue of costs is not mentioned in any of the printed information relating to initial planning meetings." 25 Although Mr Miriani did file substantial material he says that he was not accorded procedural fairness because first of all the respondent did not identify with sufficient precision the grounds on which they sought a costs order and secondly because despite the Tribunal's assurance that it would give the parties an opportunity to make further written submissions about costs in the event of an adverse finding, it did not do so. 26 In the transcript of the proceedings before the Tribunal it is true that Mr Wilson, representing the Office of Fair Trading, made an application for costs and at p 22 of the transcript, line 20, he says that Mr Miriani's application has no tenable basis in fact or law. Mr Miriani responded to the application for costs but said specifically at p 23 of the transcript that he would like to make further submissions. The Appeal Panel appears to have acknowledged that request on p 24 of the transcript by saying: "So what that is saying in simple language is I'll make a decision on the preliminary question which is jurisdiction. Technically speaking we will reserve on the costs application but give both parties an opportunity to make further submissions in the event that the decision is adverse to the applicant. I have all the material and I will go through it and see if there is more complexity to it than I have realised at this stage." 27 Mr Mescher, representing the Commissioner for Fair Trading, submitted that despite the fact that the Tribunal said that it would give the parties an opportunity to make further written submissions and did not do so, there was, nevertheless, no breach of procedural fairness. That argument was based on a submission that all the Tribunal needed to do was give the parties a reasonable opportunity to present their case. 28 While there is some force to Mr Mescher's argument, in circumstances where the Tribunal explicitly says that it will provide a further opportunity to parties to make written submissions in the event of an adverse decision, and fails to do so, we see that as a breach of procedural fairness and a failure to comply with s 70 of the Administrative Decisions Tribunal Act 1997. No directions were made by the Tribunal for the further filing of material after an adverse decision was made on the substance of the application. Indeed the Tribunal decide both the substantive issue and the costs issue and handed down its decision in May 2005. 29 For those reasons, we find that there has been an error of law on the Tribunal's part by failing to afford the applicant procedural fairness in relation to the costs application. On that basis, that part of the Tribunal's decision is set aside and remitted to the Tribunal for further consideration. 30 The final ground of appeal related to the substantive findings of the Tribunal about whether or not the agency, in this case the Office of Fair Trading, held information relating to Mr Miriani's personal affairs. Mr Miriani's argument is basically that although the REVS database did not contain any information relating to his personal affairs, other databases held by the Department, in particular the TRIM System, did have information regarding his personal affairs that could have been linked to the information in the REVS database and a document produced pursuant to s 23B of the FOI Act. That section says: "If it appears to an agency that an application relates to information of a kind that is not contained in a written document held by the agency and (b) the agency could create a written document containing information of that kind by the use of equipment that is usually available to it for retrieving or collating stored information, the agency shall deal with the application as if it were an application for a written document so created and shall be taken to hold such a document." 31 The basis for Mr Miriani's submission is emails that he obtained from the Office of Fair Trading. Mr Miriani sets out in his submissions filed on 10 August 2005, details of correspondence between Ms Kim Bryant and officers from the RTA at paragraphs 3, 4 and 5 of his submissions. 32 As best we can understand it, Mr Miriani appears to be saying that because an officer of the Office of Fair Trading obtained information contained on the RTA database and recorded that information on the TRIM System, a document could have been created in terms of s 23B, which met the description of being a document relating to his personal affairs. 33 In our view, that submission is misconceived because s 23B does not relate to the creation of a written document where the information contained in that document has to be compiled or integrated from information already on the database. We think that s 23 is directed to a situation where information is contained in electronic form which could be printed out into a written document and handed to an applicant. The scenario that Mr Miriani paints is not a simple one of printing out a document from a database but of somehow creating a new document based on information from two sources. In our view, in the circumstances set out by Mr Miriani, s 23 does not oblige the agency to create such a document. 34 In addition, where an agency has to access data from a separate agency, then the FOI Act will not apply because the agency is only required to provide access to documents held by that agency. However, where there is information held by a single agency on separate databases and that information can be produced from information in an electronic format, then the FOI Act may require an agency to create such a document under s 23B. However, for the reasons that we have given, the scenario Mr Miriani gives does not fall within that situation. 35 There was also some argument about a lack of sufficiency of search which the Tribunal dealt with briefly. We do not see Mr Miriani's argument in terms of a lack of sufficiency of search. It is a more fundamental question, namely whether or not documents fit within the description of relating to his personal affairs. There was no suggestion that the agency had not searched for documents that came within the scope of Mr Miriani's request. 36 For those reasons, we find no error of law in relation to the substantive findings of the Tribunal and decline to extend the appeal to the merits of the Tribunal's decision. 37 That leaves us to make some directions about the further filing of submissions in relation to costs. We think it prudent to make those submissions even though technically it is a matter to be remitted to the Tribunal. . . .To save time if parties are agreeable what we would propose is that the respondent file their written submissions in relation to costs within fourteen days of today, that is by 26 August . . . What we propose to do then is to give you three weeks after 26 August. So that's by 16 September. Then the Tribunal will contact you. We then direct that the Tribunal decide the costs matter on the papers. There is no order as to costs in relation to this appeal.